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HomeMy WebLinkAbout1991-2652.King.93-02-17 ONTARIO EMPLOYES DE LA COURONNE : CROWNEMPLOYEES DEft'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT ~--" . BOARD 'DES GRIEFS 180 OUNOAS STREET WE$~ 5Ul~ 2~00, TORONTO, ONTARIO, MSG ~Z8 TE~EPHON~IT~L~PH©NE: (4 161 326- ;~0, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO,, MS~ ~Z8 FAC$1MILE/~LECO~fE : {4 ~5) 325- 2652/91, 2651/91 IN THE MATTER OF AN.ARBITRATION Un4er THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIeVaNCE SETTLEMENT BOARD BETWEEN OPSEU (King) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) .Employer. BEFORE: W. Kaplan Vice-Chairperson P. Klym Member D. Montrose Member FOR THE P. Munt-Madill UNI~ Counsel Ryder, Whitaker, Wright. & Chapman Barristers & Solicitors FOR THE S. Patterson' EMPLOYER Counsel Legal Services Branch Management Board of Cabinet HEARING January 20, 1993 Introduction By two grievances dated December 72, 1991, Barry King, ,a retired l~inistry of Community and Social Services employee, grieves that the employer has incorrectly calculated his salary rate for the purpose of determining his vacation, severance and pension credits. These two grievances proceeded to a hearing in Toronto at which time the parties advised the Board that the grievance with respect to Mr. King's pension had been adjourned sine die. Accordingly, the only matter before the Board was the disposition of IVlr. King's grievance with respect to the calculation of his vacation and severance credits at the time of his resignation from employment. At the commencement of these proceedings employer counsel advised the Board that the employer objected to the grievance 'on the basis that it was out of time. Initially, the employer also took the position that the grievance should fail on its merits, However, the employer subsequently withdrew its substantive objection, and the only issue remaining to be determined was whether or not the grievance was timely. Because some evidence and argument was heard with respect to the merits of the grievance, the union proceeded first. Many of the facts relating to the timeliness objection are not in dispute. The grievor began work with the Ministry of Community and Social Services on March 17, 1972. On May 1, 1989, the grievor began a leave of absence which continued until March 31, 1991. On that date the grievor submitted his resignation from employment. While no longer an issue before the Board, when Mr. King resigned from employment his vacation and severance credits were calculated on the basis of his salary at the time he went on leave, namely $598.13 per week. If Mr. King had returned to work instead of resigning, he would have receiyed a salary of $911.54 per week. By withdrawing its substantive objection, the employer, has agreed that the vacation and severance credits should have been calculated based on the $911.54 per week amount. (See generally, Rankine 1642/90 (Fisher).) in any case, on May 16, 1991, the grievor received his vacation and severance credits calculated on his old weekly wage rate. On May 27, 1991, the grievor made a complaint by telephone to a representative of the employer. On August 16, 1991 the grievor was advised by the employer that it has "used the appropriate salary rate in the calculation of your severance pay." The grievance at issue in this case was filed on December 1 2, 1991. The Eyidence Mr. King testified on his own behalf. He told the Board that the issue of his vacation, salary and pension entitlements were intertwined in his mind, and that between the date of his resignation and the filing of his two grievances, he had been attempting to resolve both issues informally. introduced into evidence were several documents dealing with the grievor's request for information with respect to his pension entitlement, and one of these documents is dated February 26, 1991. This document is a letter from the grievor to a Ministry Human Resources Officer, and it requests certain information. Mr. King testified that he never received a reply to this letter, and the fact that he was waiting for a reply was another reason why there was an 'apparent delay in filing his grievance, along with the fact that his vacation, severance and' pension entitlements were intertwined in his mind. The grievor testified that while he received the August letter advising him that the employer believed that it had correctly calculated his severance entitlement, he still did not grieve because he was continuing to pursue the matter of his pension entitlement informally. According to Mr. King he was trying to be reasonable about the matters in dispute, and hoped to resolve them without resort to the grievance procedure. Mr. King testified that in his experience as a union steward, as the chair of the provincial income maintenance division, as a union employee and most recently as Job Security Officer with OPSEU, he is fully familiar with time limits. He did not think, however, that they had begun to run in his case, and another reason why was because the issue in dispute was in large part about his pension entitlement, and that pension would not vest for some years to come. Finally, in December ~ 991, the grievor felt that he had waited long enough, and he filed the two grievances. Mr. King gave some minimal evidence with respect to events at the pre-hearing. Employer counsel properly objected that the content of discussions 'at pre-hearings, as during the grievance procedure, are privileged. However, the Board admitted certain evidence that went to the alleged waiver of the missed time periods by the employer. Mr. King testified that the timeliness objection was not raised at the pre-hearing. Only the merits of his case were discussed. Two documents were introduced into evidence that are material to this point. The first is a letter from the grievor to Ms. June Livingston, Manager of Human Resources, dated January 10, 1997-. This letter states, in part, that: "This will confirm our telephone conversation of January 7, 1992, whereby you expressed your view on behalf of the employer that my complaint is not gdevable as I am no longer an employee of the Ministry, I am out of time limits and that pensions, are not arbitrable." The second is a letter from Ms. Livingston to the grievor dated January 29, 1992 which states, in part, that "In our previous discussion of January 7, and as in our discussion of January 24, 1992, I stated that I believe your grievances, dated December 12, 1991, were untimely and inarbitrable because you are no longer an employee and because one dealt with a pension issue." Mr. King testified that to the best of his recollection, Ms. Livingston neVer told him that his grievances were out of time. Rather he was told that they were untimely and inarbitrable for the reasons indicated in both letters. Mr. King was asked a number of questions in cross-examination. He agreed that he knew on May 16, 1991 that his vacation and severance payments had been calculated on his old wage rate, instead of on the current wage rate. He agreed that the weekly difference between the amounts was significant. He testified that he did nothing about this because he was waiting for news about his pension entitlement, in particular a reply to his letter, of February 26, 1991. The grievor agreed, however, that that letter makes no reference to either his vacation or severance entitlements. Union Argument Union counsel argued that the mandatory time limits in the collective agreement did not begin running until December 12, 1991 when the grievor finally concluded that his informal efforts to obtain resolution of his vacation, severance and pension disputes had failed. It was the very intertwining of these matters that extended the time periods for the filing of the grievance from August 16, 1991 when the grievor was advised that the employer would not be changing the calculation of his vacation and severance credits. Counsel suggested that the fact that Mr. King filed both grievances on the same day was further evidence to the effect that they were intertwined in his mind. Moreover, in counsel's submission, the grievor had properly attempted to resolve these issues informally, and the amount of time he waited was also understandable given that the major matter in dispute was the calculation of his deferred pension. Counsel argued that the grievor should not be penalized for attempting to resolve his disputes in an informal manner given the facts and circumstances of this case. Counsel cited a number of decisions to the Board including Kimmel/Leaf 1391/90 (Kaplan) and Sin_jg.g_b. Z366/87 (Fisher). Counsel argued that the Kimmel/Leaf decision was relevant because the grievor in the instant case, like one of the grievors in the Kimmel/Leaf case, had waited to file his grievance because of his personal experience in dealing with matters of this kind. Similarly, counsel argued that the ~ decision was also relevant because the grievor in that case waited some months to file his grievance, after becoming aware that there was a difference, . although he did attempt to resolve it informally in the' interim. In the alternative, counsel argued that the employer had waived its rights to rely on the timeliness objection in that the employer did not raise this objection at any time prior to the actual hearing of the case. In counsel's view, the grievor's evidence was uncontradicted that no one ever told him that the employer would be relying on a timeliness objection. Moreover, counsel suggested that the two letters cited above were further evidence that while the employer may have objected to 'the arbitrability of the grievance, it did so for reasons other than timeliness. Counsel argued that the Board's decision in Tharakan 1978/86 (Kirkwood) was directly applicable to the instant case. The Tharakan decision considered the application of the waiver doctrine, and determined that where the employer did not raise its timeliness objection prior to the hearing of the grievance, it could not rely on that objection at the hearing. Counsel argued that this principle equally applied in the instant case, and requested that should the Board not find that the grievance was timely, it should dismiss the employer's timeliness' objection on the ground that it had. been waived. Employer Argument Counsel for the employer argued that Article 27 of the' Collective Agreement establishes mandatory time periOds for filing grievances, and that the Board does have the discretion to, waive those requirements, In counsel's submission, I~r. King as an experienced union steward and union employee should have known that he had a dispute with the employer, and he should have filed his grievance in a timely fashion. Counsel agreed that between May 1 6 and August 16, 1991 the grievor attempted to resolve his concerns informally, and that the clock was not running in that period. However, in counsel's submission, on August 16, 1 991, the grievor had an answer and that answer was to the effect that the employer had considered and rejected his requesl~. Accordingly, the grievor should have filed a grievance at that time. In counsel's view, the matter of the grievor's vacation and severance payments were not intertwined with his pension entitlement in that one was payable immediately and the other was deferred. There was, moreover, no documentary evidence illustrating any relationship between the two. Counsel argued that there was no evidence that the grievor continued to contact management between August 16, 1991 and the date on which he filed his grievance in any effort to resolve either of his concerns informally. Very simply, in counsel's submission, the grievor sat on his rights until December 17_, 1991, and given the fact that the time limits in the collective 'agreement are mandatory, the grievance should be dismissed. Employer counsel cited the Mirasol 1389/90 (Knopf) decision, which considered a timeliness objection in a comparable case, and where the Board held that: Nothing can be more intimately connected to or relate more closely to the administration of a collective agreement than the determination of a rate of pay. This is precisely the tyPe of case that even the liberal interpretation of Article 27 in Bleach recognizes as one that must attract the applicability of an objective approach to timeliness. An employee who becomes aware of a "complaint or difference" concerning his/her rate of pay must be assumed to realize this is a matter which s/he could pursue through the dispute resolution procedure of the collective agreement. As said in Bleach at page 15: Where the matter is one which the employee ought reasonably to understand to be a matter of contract administration, the test is an objective one and the time will begin running under Article 27.2_.1 at the time when the employee becomes aware of the decision or act of the Employer which adversely or prejudicially affects the employee. CoUnse~ argued that these same principles applied in the instant case. With resPect to waiver, counsel conceded that the .January 2_9, '1 992 letter from Ms. Livingston to the grievor somewhat clouded the issue. However, the earlier letter from the grievor to Ms. Livingston strongly suggested that the grievor was aware that the employer would be relying on time limits with respect to his case. 'Counsel argued that there was insufficient evidence to establish that the employer had waived any of its rights. Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that the employer's timeliness objection is well founded. However, we also find that the employer waived its legal rights and so cannot rely on that objection in this case. We are of the view that Mr. King, as an experienced union steward and union employee, knew, or should have known, on August 16, 1991 that he had a complaint or difference with the employer, and he should have brought that complaint or difference to the attention of the employer within the time limits established in the collective, agreement. He did not so, and we are not convinced by the explanation he offered for his failure to file a grievance. The grievor's vacation and severance payments were due immediately upon his resignation, unlike his deferred pension. If Mr. King was dissatisfied with the calculation of the amount owing he should have taken formal steps with respect to bringing his dissatisfaction to the attention of the employer after August 16, 1991 when he was advised that his request for recalculation had been rejected. Instead, he did nothing for approximately four months. If the employer had then made Mr. King aware that his grievance was out of time we would have dismissed his grievance in this case. There is, however, no evidence that it did so, and all the evidence, in fact, is to the opposite effect. Mr. King testified that no one in management ever told him that his grievance was out of time, nor was this issue raised at the pre-hearing. Moreover, the documentary evidence indicates that while the employer raised some preliminary objections to arbitrability, it did not raise timeliness itself as one of its objections.: The law is well established that where a party fails to make a procedural objection, and then treats a grievance on its merits in the face of a clear defect, such as the one in the instant case, the party is considered to have "waived" the defect. Had the letter from Ms. Livingston been phrased or punctuated somewhat differently, we might have reached another result. It should also be noted that no one from management gave evidence in this case, and the grievor's testimony is uncontradicted: The timeliness objection was never brought to his attention. Accordingly, the employer's timeliness objection is granted. The grievance is out of time, but we find that the mandatory time periods were waived and the Board, accordingly, has jurisdiction over 'this case. As the merits are no longer in dispute, we find for the grievor. The employer is ordered to recalculate the grievor's vacation and severance entitlements and correctly compensate him. We do not find that this is an appropriate case to make any order with respect to interest. However, should the employer not recalculate and correctly compensate the grievor within thirty days of the date of the award, then interest will begin to accrue in accordance with the usual formula. We remain seized with respect to the implementation of this award. DAT¢~r) at Toronto this17th day of February 1993. wiJJiam Kaplan Vice;~Ch?.irperson P. Klym I~ember~ ~ t O. Montrose Member